In re Michael B. CA6 ( 2014 )

Filed 12/4/14 In re Michael B. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re Michael B., a Person Coming H040055
Under the Juvenile Court Law. (Santa Clara County
___________________________________ Super. Ct. No. 3-11-JV-38837I)
THE PEOPLE,
Plaintiff and Respondent,
v.
Michael B.,
Defendant and Appellant.
A juvenile wardship petition alleged Michael B., the minor, engaged in conduct
that would constitute the following offenses if committed by an adult: Count One—theft
of a vehicle (Veh. Code, § 10851, subd. (a)); Count Two—receiving a stolen vehicle
(§ 496d); Counts Three and Four—receiving stolen property (§ 496, subd. (a)); and
Count Five—first degree residential burglary (§§ 459, 460, subd. (a)).1 As to Count Five,
the petition alleged that a person was present during the commission of the burglary.
(§ 667.5, subd. (c)(1).) After a contested jurisdictional hearing, the juvenile court
dismissed Count One and sustained Counts Two through Five. The court continued the
1
All subsequent references to the alleged offenses refer to conduct that would be
criminal if committed by an adult. Undesignated statutory references are to the Penal
Code.
minor’s wardship and committed him to a boys’ ranch for six to eight months. The court
also imposed $150 in attorney fees.
On appeal, the minor contends the juvenile court erred in denying his motion to
dismiss the petition under Kellett v. Superior Court (1966) 63 Cal. 2d 822 (Kellett).
Second, the minor asks that we modify the judgment to clarify that he is not personally
liable for attorney fees.
We conclude the juvenile court properly denied the Kellett motion, but we will
modify the judgment to clarify that the minor is not personally liable for attorney fees.
We will affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2011, at age 14, the minor lived with his mother in San José. To his
mother’s dismay, the minor began spending a lot of time with his older cousin, Jaime N.,
who turned 18 on November 30, 2011. The minor’s mother tried to keep him away from
Jaime, because Jaime had been in “a lot of trouble before.” Around late November or
early December 2011, the minor ran away from home and joined up with Jaime. The
minor’s father filed a missing person report on December 6, 2011.
A. Facts of the Offenses
On November 27, 2011, a white, 1999 Toyota Camry was stolen from Tieu
Nguyen in San José.
1. The Burglaries
On the afternoon of December 6, 2011, someone burglarized Magdalena Deibert’s
home in San José. The burglar or burglars entered an unlocked garage window and stole
musical instruments, laptops, electronics, and jewelry. There were no witnesses to this
burglary identified in the record.
At 10:00 a.m. on December 7, 2011, two persons burglarized the home of
Prashanta Vanka’s parents in San José. Vanka was home alone in his bedroom upstairs.
Someone knocked on a door downstairs and rang the doorbell a couple times. Vanka
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ignored it. Five or 10 minutes later, a Hispanic man went upstairs and entered Vanka’s
bedroom. The man appeared to be between the ages of 18 and 26, and he was wearing an
Oakland A’s baseball cap. When Vanka asked him who he was, the man claimed, “I’m a
bank robber.” The man then ran downstairs while yelling, “Mikey get out.” The man ran
through the kitchen and out of the house. Vanka saw a second male with a pillowcase
running out of the house through the master bedroom. The two burglars then drove away
in a white Camry with license plate number 4MAM934. The burglars took cash, jewelry,
laptops and cameras. Vanka saw that a screen was removed from the master bathroom
window, and that someone “took a dump” in the toilet.
At 11:30 a.m. that same day, two males burglarized Bao Tran Bui’s home in San
José. Bui’s home was a 15-to-20 minute drive from Vanka’s home. Bui heard someone
knock on the front door and ring the doorbell several times. She was preoccupied and did
not answer the door. A few moments later, Bui heard some noise downstairs. She
looked out the front door and saw an older, white sedan parked across the street. She
then looked out a backyard window and saw two males removing things from her kitchen
window. They appeared to be “at least under 20.” One looked Caucasian, and the other
looked “maybe Hispanic, Latino.” Bui called out to them and warned them she would
call the police, whereupon they ran off. After calling 911, Bui looked out the front
window and saw that the white sedan was gone. Someone had removed a screen from an
unlocked window. The probation officer’s report stated that several fingerprints taken
from the crime scene matched the minor’s fingerprints.
At around 9:00 a.m. on December 8, 2011, Maria Chu’s home in Saratoga was
burglarized. Chu was not at home at the time, but her husband called to report that a
neighbor had seen two people walk into the side gate of their home. Chu drove home,
where the neighbor pointed out that Chu’s backyard sliding door was open. Chu saw a
white Camry in the area. After she called the police, the Camry drove away very quickly.
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A screen had been removed from a bathroom window. The burglars took jewelry, cash, a
backpack, iPhones, and cameras.
2. Recovery of the White Camry and Stolen Property
In the early morning hours of December 10, 2011, the minor’s parents were
driving around San José looking for him. At around 3:00 a.m., the minor’s mother saw
the minor and Jaime sneaking into Jaime’s mother’s house. The minor’s father got out of
the car to chase after the minor. The minor’s mother pleaded with Jaime to “Please let
Mikey go,” but Jaime prevented her from taking the minor. Jaime and the minor got into
a white Camry, and Jaime drove it away. The minor’s mother called 911.
At around 4:00 a.m., police located the white Camry in front of Jaime’s residence.
Police determined the car was the white Camry that had been stolen from Tieu Nguyen
on November 27. The car’s original license plates had been removed and replaced with
license plates numbered 4MAM934. Those plates had been stolen from a vehicle on the
morning of December 7, 2011.
Police found stolen property in the trunk, the front seat, and the back seat of the
Camry. The property included items stolen from Deibert’s home and Chu’s home. None
of Vanka’s property was found in the Camry. Palm prints on the rearview mirror
matched the minor’s right palm, and fingerprints from the rear passenger side window
matched the minor’s fingerprints. Police also found an Oakland A’s baseball cap and
jacket in a search of Jaime’s bedroom.
Police arrested the minor on December 11, 2011, in connection with the theft of
another vehicle—a Pontiac Ventura.
B. Procedural History
1. Prior Petitions
On December 29, 2011, the prosecution charged the minor in Petition A with theft
of a vehicle—the Pontiac Ventura on December 11, 2011—and giving a false name to a
peace officer. (Veh. Code, § 10851, subd. (a); § 148.9.) On April 19, 2012, the minor
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admitted the allegations. The court declared the minor a ward of the court and placed
him in the custody of his parents with electronic monitoring for 90 days.
On October 12, 2012, the prosecution charged the minor in Petition C2 with first
degree residential burglary of Bui’s residence on December 7, 2011. (§§ 459, 460, subd.
(a).) On November 28, 2012, the minor admitted the allegations in Petition C. The court
continued wardship, returned the minor to the custody of his parents, and ordered
electronic monitoring for 90 days.
2. Current Proceedings
On July 2, 2013, the prosecution charged the minor in amended Petition I with five
counts: Count One—the theft of Nguyen’s Camry on or about or between November 28,
2011 and December 10, 2011 (Veh. Code, § 10851, subd. (a)); Count Two—receiving a
stolen vehicle—Nguyen’s Camry—on December 10, 2011 (§ 496d); Count Three—
receiving stolen property (a briefcase, jewelry, musical instruments) on December 10,
2011 (§ 496, subd. (a)); Count Four—receiving stolen property (jewelry, money, bags,
cameras, and personal electronic devices) on December 10, 2011 (§ 496, subd. (a)); and
Count Five—first degree residential burglary of Vanka’s residence on December 7, 2011.
(§§ 459, 460, subd. (a).) The petition further alleged an enhancement that Vanka was
present during the commission of the burglary. (§ 667.5, subd. (c)(1).)
At the contested jurisdictional hearing, the prosecutor specified that the stolen
property found in the white Camry––alleged in Counts Three and Four––was the property
stolen from Chu and Deibert. Although the Bui burglary had already been charged in
Petition C and had been admitted by the minor, the prosecutor introduced testimony from
Bui under Evidence Code section 1101, subdivision (b) as evidence of “a common
scheme or plan to steal cars and to commit residential burglaries.” Bui testified to the
facts of the December 7, 2011 burglary of her home as set forth above.
2
During this general time period, the prosecution charged the minor with several
other petitions (e.g., Petition B) not at issue in this appeal.
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The court dismissed Count One, sustained Counts Two through Five, and
sustained the enhancement. After a dispositional hearing on Petition I and two other
petitions, the court continued the minor’s wardship and committed him to the boys’ ranch
for six to eight months. The court also imposed $150 in attorney fees.
II. DISCUSSION
A. Motion to Dismiss Under Kellett v. Superior Court
The minor contends the court erred in denying his motion to dismiss Petition I
under Kellett, supra, 63 Cal. 2d 822. He argues that the Bui burglary previously charged
in Petition C was part of the same course of conduct as the offenses charged in Petition I,
such that the prosecution was required to file the latter charges when it filed Petition C.
The Attorney General argues that the prosecution was justified in bringing Petition I at a
later time because of a reasonable delay in processing the evidence to support it. The
Attorney General further contends that the offenses charged in Petition I were sufficiently
unrelated to the offense charged in Petition C to allow for multiple prosecutions.
We find the offenses in the two petitions were too unrelated to bar subsequent
prosecution under Kellett.
1. Procedural Background
At the contested jurisdictional hearing on Petition I, the minor moved to dismiss
the petition on two grounds: first, that the 18-month delay in bringing charges had
violated his due process rights; and second, that Petition I was barred under Kellett
because the prosecution had failed to bring those charges in prior petitions. In support of
the Kellett motion, the minor argued that the conduct charged in Petition I was part of the
same course of conduct—what his counsel described as a “spree”—as the conduct
charged in Petitions A and C. The prosecutor responded that Petition C was charged
separately because fingerprint evidence had placed the minor at the scene of the Bui
burglary. The prosecutor further argued that the delay in charging Petition I was due to a
delay in analyzing “DNA evidence which was submitted in January of 2012 and did not
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return until May of 2013.” The court denied the motion to dismiss, finding that “it is
reasonable, although perhaps unusual, for DNA results to take that long for the people to
prosecute.”
2. Legal Principles
Section 654, subdivision (a) provides, in relevant part: “An acquittal or conviction
and sentence under any one [provision of law] bars a prosecution for the same act or
omission under any other.” This bar against multiple prosecutions may apply even when
“the same act” is one of several physical acts forming the same course of conduct
charged in a prior prosecution. (Kellett, supra, 63 Cal.2d at p. 827.) In Kellett, the
California Supreme Court held that when “the prosecution is or should be aware of more
than one offense in which the same act or course of conduct plays a significant part, all
such offenses must be prosecuted in a single proceeding unless joinder is prohibited or
severance permitted for good cause. Failure to unite all such offenses will result in a bar
to subsequent prosecution of any offense omitted if the initial proceedings culminate in
either acquittal or conviction and sentence.” (Ibid., fn. omitted.)
The purpose of this bar is to prevent the needless harassment and waste of
resources that may result from multiple prosecutions for the same act or course of
conduct. “If needless harassment and the waste of public funds are to be avoided, some
acts that are divisible for the purpose of punishment must be regarded as being too
interrelated to permit their being prosecuted successively.” (Kellett, supra, 63 Cal.2d at
p. 827.) Furthermore, the bar on multiple prosecutions sweeps more broadly than the
prohibition on multiple punishments under section 654: “When there is a course of
conduct involving several physical acts, the actor’s intent or objective and the number of
victims involved, which are crucial in determining the permissible punishment, may be
immaterial when successive prosecutions are attempted.” (Ibid.; cf. Neal v. State of
California (1960) 55 Cal. 2d 11, 19 [whether a course of criminal conduct is divisible and
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therefore gives rise to more than one act within the meaning of section 654 depends on
the intent and objective of the actor].)
The Kellett bar against multiple prosecutions applies to juvenile proceedings. (In
re R.L. (2009) 170 Cal. App. 4th 1339, 1343.) We review factual determinations under the
deferential substantial evidence test, viewing the evidence in the light most favorable to
the prosecution. (People v. Valli (2010) 187 Cal. App. 4th 786, 794 (Valli).) We review
de novo the legal question of whether section 654 applies. (Ibid.)
3. Forfeiture
As an initial matter, we consider the Attorney General’s argument that the minor’s
claim on appeal is limited to dismissal of Count Five (the Vanka burglary) of Petition I.
The Attorney General contends the minor has forfeited his claims as to the remaining
counts in Petition I by failing to raise them here or in the juvenile court.
The minor moved in juvenile court to dismiss the entire petition under Kellett.
While the bulk of his argument was focused on Count Five, he specifically argued that
Counts One through Four of Petition I should be dismissed as part of the “same act or
course of conduct” as the vehicle theft charged in Petition A. He also argued for
dismissal of Counts One and Two on the basis of evidentiary overlap with the allegations
of Petition C. These arguments were sufficient to preserve these issues on appeal.
Furthermore, the minor’s arguments on appeal are not limited to Count Five of
Petition I. Again, while the bulk of the minor’s argument focuses on Count Five, he
specifically contends in his opening brief that Counts Two, Three, and Four must also be
dismissed on the grounds that the prosecution used the same evidence to prove these
counts as it would have used to prove Petition C. We conclude the minor has preserved
his claim as to Counts Two through Five of Petition I.3
3
Count One of Petition I is not at issue on appeal because the juvenile court
dismissed it on other grounds. The minor raises no claims on appeal concerning Petition
A. Accordingly, we will not address the Petition A charges in our analysis.
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4. The Juvenile Court Properly Denied the Minor’s Motion to Dismiss
In applying Kellett, we first consider whether the prosecution was or should have
been aware that the conduct charged in Petition I was a significant part of the same act or
course of conduct as the offense charged in Petition C. We then consider whether the
acts charged in Petition C and Petition I were part of the same “act or course of conduct”
under Kellett, thereby barring prosecution of Petition I.
a. The Prosecution Was or Should Have Been Aware of Multiple Offenses in
Which the Same Acts or Course of Conduct Played a Significant Part
“The Kellett rule applies only where ‘the prosecution is or should be aware of
more than one offense in which the same act or course of conduct plays a significant
part.’ ” (Valli, supra, 187 Cal.App.4th at p. 796 [finding the prosecution was aware of
the later charged offense at the time the earlier offense was charged].) Thus, as a
threshold matter, we must first determine whether the prosecution was or should have
been aware, when it filed Petition C, that the acts or conduct charged later in Petition I
were a significant part of the same act or course of conduct charged in Petition C.
The prosecution filed Petition C on October 12, 2012. But the prosecution knew
or should have known as of January 2012 that the minor had committed the offenses in
Petition I, and the prosecution knew or should have known of the connections between
them.
First, as to Count Two (receiving a stolen vehicle), police recovered the stolen
Camry on December 10, 2011, in front of Jaime’s house, soon after the minor’s mother
told them she had just seen her son in the car. Police immediately determined that the
vehicle had been stolen because the number on the license plates—which had been stolen
from another car—did not match the properly recorded license plate number associated
with the vehicle identification number. A police investigator found the minor’s
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fingerprints in the interior of the Camry on December 14, 2011, corroborating his
mother’s report to police. On January 20, 2012, police spoke again with the minor’s
mother, who repeated her earlier narrative placing Jaime and the minor in the Camry. As
the testimony by police investigators made clear, by that point in time, they were well
aware of the minor’s connection to the stolen Camry.
As to Counts Two and Three (receipt of property stolen from Chu and Deibert),
the property was recovered from inside the Camry at the same time police recovered the
car. During a visit to the police property warehouse on December 21, 2011, Deibert
identified the property stolen from her. As to Chu’s property, she had first spotted the
white Camry outside her house on the morning of the burglary on December 8, 2011.
She saw the Camry drive away quickly after she called the police. She also identified a
large amount of her stolen property found in the Camry.
As to Count Five (the Vanka burglary), Vanka witnessed the burglary when it
happened on December 7, and reported two persons—one called “Mikey”—driving away
from his house in the white Camry. He reported the license plate number to the police,
who matched it to the number of the stolen plates on the Camry when it was recovered on
December 10, 2011. Vanka was unable to identify any of his property among the items
stored at the police warehouse, but police connected the minor to the burglary through
Vanka’s identification of the Camry by its license plates, which were known at the time
the vehicle was recovered. The prosecution was or should have been aware of all this
evidence by January 20, 2012, more than eight months before Petition C was filed.
Furthermore, the police were aware of the common facts connecting these offenses
to the Bui burglary charged in Petition C. Bui reported seeing a white sedan parked
outside her home during the burglary on December 7, 2011. The car had driven away
after she called 911. She had reported seeing two persons, one of whom was Hispanic.
And most importantly, police had recovered the minor’s fingerprints from Bui’s house
and from the inside of the Camry at some point before Petition C was filed. Based on the
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timing of the Bui burglary (committed about 90 minutes after the Vanka robbery), the
presence of a white sedan, and the presence of the minor himself, the prosecution was or
should have been aware that the Bui burglary was related to the offenses charged in
Petition I. Thus, we must examine whether the offenses were part of the same “act or
course of conduct” under Kellett, thereby barring prosecution of Petition I.
b. The Offenses Were Not Part of the Same Act or Course of Conduct
As the court explained in Valli, appellate courts have adopted two different tests to
determine whether multiple offenses arise during the same act or course of conduct under
Kellett. (Valli, supra, 187 Cal.App.4th at p. 797.) Under one line of cases, multiple
prosecutions are not barred if the offenses were committed at separate times and
locations. (People v. Douglas (1966) 246 Cal. App. 2d 594, 599 (Douglas) [no bar to
multiple prosecution where each offense had a separate beginning, duration, and end,
none of which overlapped]; People v. Ward (1973) 30 Cal. App. 3d 130, 136 [no bar to
multiple prosecution where crimes were committed at different locations, at different
times, against different victims, and with different objectives]; People v. Cuevas (1996)
51 Cal. App. 4th 620, 624 [no bar to multiple prosecution for offenses committed at
different times and at different places]; cf. People v. Britt (2004) 32 Cal. 4th 944, 955
[multiple prosecutions barred where registered sex offender moving from one county to
another failed to notify both counties of his change in residence].) We will refer to this as
the “time-and-place” test.
A second version of the test––the “evidentiary test”––looks to the evidence
necessary to prove the offenses. (People v. Flint (1975) 51 Cal. App. 3d 333 (Flint).) “[I]f
the evidence needed to prove one offense necessarily supplies proof of the other, [. . .] the
two offenses must be prosecuted together, in the interests of preventing needless
harassment and waste of public funds.” (People v. Hurtado (1977) 67 Cal. App. 3d 633,
636 (Hurtado).) However, “The evidentiary test of Flint and Hurtado requires more than
a trivial overlap of the evidence. Simply using facts from the first prosecution in the
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subsequent prosecution does not trigger application of Kellett.” (Valli, supra,
187 Cal.App.4th at p. 799.)
We need not decide which of these two tests properly sets forth the application of
section 654 because the minor’s claim cannot succeed under either version.
First, under the evidentiary test, the evidence necessary to prove Petition C (the
Bui burglary) was largely distinct from that necessary to prove the charges in Petition I
(receipt of the stolen Camry, receipt of the Chu and Deibert property, and the Vanka
burglary). Evidence needed to prove the offenses in Petition I consisted primarily of
evidence putting the minor in the Camry—e.g., his mother’s testimony and his
fingerprints in the car—and testimony from Chu and Deibert identifying their stolen
property, which was found in the Camry when it was recovered.
By contrast, evidence needed to prove the Bui burglary, charged in Petition C,
consisted of two pieces: (1) Bui’s testimony, and (2) the minor’s fingerprints found in
Bui’s residence. The fingerprints found in Bui’s residence were entirely separate from
any evidence needed to prove the charges in Petition I. The minor argues that there was
evidentiary overlap between Bui’s testimony and the charges in Petition I because Bui
stated that she saw a white sedan outside, which was gone after the burglary was
complete. But the connection between this testimony and the evidence needed to prove
Petition I is too slim to bar multiple prosecutions. (Valli, supra, 187 Cal.App.4th at
p. 799 [evidentiary overlap must be more than trivial for Kellett to apply].)
The minor further argues that the prosecution’s introduction of Bui’s testimony
under Evidence Code section 1101 demonstrates evidentiary overlap between the two
petitions. But Bui’s testimony was not necessary to prove the charges in Petition I. The
prosecution had strong evidence to support those charges apart from Bui’s testimony. As
to Counts Two through Four, the prosecution could have convicted the minor based
solely on his presence in the Camry and the presence of the stolen property in it. As to
Count Five, the prosecution could have relied on Vanka’s identification of the white
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Camry by its license plate number. Vanka also provided significant eyewitness
testimony to the burglary, including his description of Jaime’s appearance, and Jaime’s
use of the nickname “Mikey,” which the minor’s mother also used to identify him. Bui’s
testimony was largely cumulative of this evidence. On this record, any evidentiary
overlap between the charges in the two petitions was too modest to support a bar on the
latter prosecution.
Furthermore, had the offenses been charged together, the prosecution would have
introduced the same testimony from Bui she gave at the hearing for Petition I. We
perceive no waste of resources under these circumstances, wherein the witness was
required to testify only once. Of course, these circumstances arose only because the
minor chose to admit the charge in Petition C, but there is no rule barring the use of a
defendant’s admission in a prior case as the basis for a new prosecution. (Valli, supra,
187 Cal.App.4th at p. 800 [citing United States v. Baker (9th Cir. 1988) 850 F.2d 1365,
1370].) We conclude that, under the evidentiary test, Kellett did not bar the prosecution
of Petition I.
We reach the same conclusion under the time-and-place test described in Douglas,
supra, 246 Cal.App.2d at page 599. First, the Bui burglary charged in Petition C was
completely separate in time and space from the Vanka burglary charged in Count Five of
Petition I. The Vanka burglary began at the Vanka residence at around 10 a.m. on
December 7, 2011, and the offense was completed as soon the minor entered the house
with the requisite intent. “It is defendant’s intention at the time he made the entry that is
determinative, since burglary arises when a person enters the house of another with the
intent to commit a felony. [Citation.] What occurs later—completion of the felony,
abandonment, or capture—is irrelevant to the original crime.” (People v. Bard (1968)
70 Cal. 2d 3, 5.) The two youths then left the Vanka residence and drove for 15 to 20
minutes to Bui’s residence—a completely separate location. There, the minor began and
ended the Bui burglary with no overlap in time or space to the Vanka burglary. The
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minor argues that the two offenses happened very close in time—at 10:00 a.m. and
11:30 a.m.—but this does not suffice under the test set forth in Douglas. We conclude
that these two offenses were too distinct in time and space to form the same course of
conduct for purposes of Kellett.
By the same token, the receipt of stolen property from Chu constituted a separate
act or course of conduct under the time-and-place test. The Chu burglary did not occur
until December 8, 2011, the day after the Bui robbery. The minor could not have been in
receipt of the stolen property until that time, and there was no evidence he received it at
or near the Bui residence. Accordingly, there was no overlap in time or space between
the Bui burglary and the receipt of stolen property from Chu.
Arguably, receipt of the stolen property from Deibert and receipt of the stolen
Camry briefly overlapped in time with the Bui burglary, assuming the minor was in
possession of the stolen property and the Camry at the time of the Bui burglary. But the
evidence does not clearly support this assumption. The evidence shows that both the
Camry and Deibert’s property were stolen before the Bui burglary, but it is not clear
whether the minor had possession of those items at the time of the Bui burglary. Because
there were no witnesses to the theft of the Camry or the burglary of Deibert’s residence, it
is possible that Jaime or some other third party acting alone committed those offenses,
and that the minor came into possession of the stolen items at a later time. Although Bui
testified that she saw a white sedan outside her residence, we do not think this evidence
so clearly establishes the minor’s possession of the stolen Camry that it barred any
subsequent prosecution for that offense.
For these reasons, we conclude that Kellett did not bar prosecution of any of the
offenses charged in Petition I. Accordingly, we need not reach the issue of whether the
prosecution was unable to proceed due to delay that may have occurred in analyzing
DNA evidence.
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B. Imposition of Attorney Fees
The minor contends the juvenile court lacked the authority to impose attorney fees
on him personally. He requests that we modify the record to clarify that only his parents
are liable for the $150 in attorney fees imposed by the juvenile court. The Attorney
General agrees that a minor may not be held liable for attorney fees, but she argues that
modification is unnecessary based on the record.
1. Procedural Background
In its oral pronouncement at the dispositional hearing, the juvenile court ordered
“fees in the amount of $150” without specifying who was liable for the fees. The written
dispositional order required the parents—but not the minor—“to appear within thirty
days before a financial officer from the Department of Revenue for an evaluation of the
ability to pay certain reimbursable costs: [¶] . . . Conflict Attorney’s fees $150.00 . . . .”
However, another section of the order states that “Minor and parents/guardian(s) are
presumed jointly and severally responsible for the payment of restitution, fines, or
penalty assessments (W.I.C. 730.7).” The court also adopted certain recommendations in
the probation report, which were incorporated into the written dispositional order. The
adopted portion of the probation report did not explicitly recommend imposition of
attorney fees, but it recommended that the minor and parents be held jointly liable for
restitution, a general fund fine, and penalty assessments.
2. Legal Principles
Welfare and Institutions Code section 903.1 provides, in relevant part: “The
father, mother, spouse, or other person liable for the support of a minor, the estate of that
person, and the estate of the minor, shall be liable for the cost to the county or the court,
whichever entity incurred the expenses, of legal services rendered to the minor by an
attorney pursuant to an order of the juvenile court.” This provision “does not authorize
juvenile courts to impose attorney fees on a minor if the minor is under 18 years of age
when counsel is appointed.” (In re Gary F. (2014) 226 Cal. App. 4th 1076, 1083.)
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Accordingly, only the minor’s parents may be held liable for attorney fees. (Ibid.)
Because the imposition of attorney fees on a minor constitutes an unauthorized sentence,
failure to object below does not forfeit the claim on appeal. (Id. at p. 1083, fn. 5.)
3. The Record Does Not Show on Whom the Court Imposed Attorney Fees
The record here does not clearly show whether the juvenile court imposed attorney
fees on the minor. In its oral order, the juvenile court did not specify on whom it was
imposing attorney fees. Furthermore, the written dispositional order contains several
statements referring generally to fines and penalty assessments that could reasonably be
interpreted to impose joint liability on the minor and parents for attorney fees. Because
the juvenile court was not authorized to impose attorney fees on the minor, we will order
the record modified to clarify that the minor is not liable for attorney fees.
III. DISPOSITION
The judgment is modified as follows: The minor is not liable for any portion of
the attorney fees assessed by the juvenile court. As modified, the judgment is affirmed.
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_________________________
MÁRQUEZ, J.
We concur:
_________________________
BAMATTRE-MANOUKIAN, J.
_________________________
GROVER, J.
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